Mapigano, J
On January 17, 1996, the applicant Adamu Mwaibabile was brought before the E district court at Songea charged with receiving a document knowing that the same was communicated to him in contravention of the National Security Act, 1970, contrary to s 4(3) of that Act. He denied the charge and it is to be observed that there was a written sanction by the Director of Public Prosecutions that he should be so prosecuted, as required under s 16 the Act. F
The matter arose in this way: By a curious letter dated April 27, 1995, one Mrs Mangwehe, a regional local government officer, directed the Songea Town Director to ensure that the applicant was not granted any business licence for the year 1995/1996. Mrs Mangwehe made it absolutely clear that this directive G emanated from the Songea Regional Commissioner of the day, one Nicodemas M Banduka. On the following day the applicant came by a document which carried the same message, what was described at the trial as a photocopy of the copy of the letter addressed to the Town Director. It disturbed him and he took it to the Town Council Chairman and left it with him. Days later the applicant was H summoned at the police station and interrogated, resulting into the prosecution.
The applicant was convicted of the offence and the trial magis- I
A trate handed down a twelve month jail sentence. He is aggrieved by the trial judgment and has brought it to appeal. A number of grounds are taken in the petition of appeal.
What is now before me is an application that appears has overwhelming prospects of succeeding. Mr Shaidi, Principal State Attorney, has expressed the same view. Properly so, I think. Some of the grounds raised in the petition appear substantial and probably irresistible. B
The first of these grounds related to the failure on the part of the prosecution to produce the document which was the subject-matter of the charge. The record is completely silent as to why the document could not be tendered in evidence. Mr C Shaidi has observed that this was a material lacuna and I entirely agree with him.
The second ground relates to the circumstances under which the document in question came into the applicant's possession. It is quite clear from s 4(3) of the Act that where an accused person proves that such document was D communicated to him against his wish he must be released from the charge. And the court has to bear in mind that the onus of proof thrown on the accused person in that respect is not the beyond reasonable doubt threshold. It is sufficient if he E succeeds in proving a prima facia case. From the very beginning, and throughout the trial, the applicant's account was that the document was slipped into his office through the space at the bottom of his door by a person he did not see or know. This was the only account given as to how the applicant came by the document. Mr Shaidi accepts the view that it was a reasonable account and I am inclined to associate myself with that view. F
The third ground relates to the mental element ie the applicant's awareness at the time when he came into possession of the document. In order to find him guilty of the offence it was inter alia necessary for the prosecution to prove, and for the magistrate to be satisfied beyond reasonable doubt, that at the time he received G the document he knew or had reasonable grounds to believe that the same was communicated to him in contravention of the provisions of the Act. There was hardly any such proof.
In the circumstances this application should be granted. H
Accordingly, the applicant is to be released on bail pending the hearing of his appeal and his release is to be effected without any surety. I
1997 TLR p99
